Health Ombudsman v Flute - [2021] QCAT 189

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Flute [2021] QCAT 189

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

TRUDI ANN FLUTE

(respondent)

APPLICATION NO/S:

OCR123-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 May 2021 (ex tempore)

HEARING DATE:

31 May 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:

Ms Laura Dyer
Ms Dominique Layt

Mr Stephen Lewis

ORDERS:

1.       Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides, in relation to each of allegations 1 and 3, that the respondent has behaved in a way that constitutes professional misconduct.

2.       Pursuant to section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides, in relation to allegation 2, that the respondent has behaved in a way that constitutes unprofessional conduct.

3.       Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

4.       Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of two (2) years.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was registered as an enrolled nurse – where the respondent was convicted of serious criminal offences – whether such conduct should be characterised as professional misconduct – where the respondent failed to notify the Nursing and Midwifery Board of the relevant event of being charged with offences – whether such conduct should be characterised as unprofessional conduct – what sanction should be imposed

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland), s 5, s 130

Chiropractic Board of Australia v Oorloff [2019] VCAT 2010

Health Ombudsman v Lozano [2021] QCAT 87
Nursing and Midwifery Board of Australia v Gaffney [2019] SAHPT 11

Nursing and Midwifery Board of Australia v Sellen [2020] QCAT 318

APPEARANCES & REPRESENTATION:

Applicant:

N Townsend of the Office of the Health Ombudsman

Respondent:

No appearance

REASONS FOR DECISION

Introduction

This is a referral of a health service complaint against Trudi Ann Flute (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the Director of Proceedings on behalf of the Health Ombudsman (applicant).
The applicant seeks findings that the respondent has behaved in a way that constitutes professional misconduct and orders for sanction. The respondent has chosen not to engage in the proceedings, has filed no submissions and declined an opportunity to appear at the hearing, either in person or remotely.
Background
The respondent is 37 years of age and was first registered as an enrolled nurse on 30 July 2007. From submissions made on her behalf during the criminal proceedings regarding some of the conduct the subject of the referral, it appears that she was gainfully employed as an enrolled nurse at the Rockhampton Hospital until August 2012.
It would seem that it was in about 2012 that the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 189
Decision Date

CaseChat Overview and Summary

The matter of Health Ombudsman v Flute was heard by the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Health Ombudsman, seeks findings that the respondent, an enrolled nurse, has behaved in a way that constitutes professional misconduct and orders for sanction. The respondent has chosen not to engage in the proceedings, has filed no submissions, and declined an opportunity to appear at the hearing, either in person or remotely. The respondent was first registered as an enrolled nurse in 2007 and was employed at Rockhampton Hospital until August 2012. In 2012, the respondent began using methylamphetamine, which led to criminal offending and a deterioration in her professional practice. The respondent's registration was subject to conditions, and she ultimately failed to renew her registration, which lapsed on 4 July 2018.

The primary legal issue before the court was whether the respondent's conduct constituted professional misconduct. The court was required to consider the three allegations made by the Health Ombudsman, which included the respondent's conviction for offences of violence, her failure to notify the Nursing and Midwifery Board of Australia of her being charged with offences punishable by 12 months imprisonment or more, and the impact of her conduct on her professional standing. The court had to determine whether the respondent's conduct was of such a nature as to justify findings of professional misconduct and appropriate sanctions. The court considered the respondent's criminal history, her failure to notify the Board of her charges, and the impact of her drug use on her professional practice. The respondent's failure to engage in the proceedings or provide any submissions further complicated the court's task in assessing the seriousness of her conduct.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant seeks findings that the respondent has behaved in a way that constitutes professional misconduct and orders for sanction. The respondent has chosen not to engage in the proceedings, has filed no submissions and declined an opportunity to appear at the hearing, either in person or remotely.Background The respondent is 37 years of age and was first registered as an enrolled nurse on 30 July 2007. From submissions made on her behalf during the criminal proceedings regarding some of the conduct the subject of the referral, it appears that she was gainfully employed as an enrolled nurse at the Rockhampton Hospital until August 2012. It would seem that it was in about 2012 that the respondent began using methylamphetamine. That, no doubt, provides some explanation for her subsequent criminal offending and deterioration in professional practice as a nurse. The respondent’s registration subsequently became subject to conditions. The respondent ultimately failed to renew her registration, which lapsed on 4 July 2018, and she has remained unregistered since. The respondent was not practising as an enrolled nurse at the time of the conduct the subject of the referral; however, she still maintained her registration at such times.Conduct The referral particularises three “allegations”. Allegation 1 relates to the respondent’s conviction for offences of violence. On the evening of 27 December 2017, the respondent and a friend walked uninvited into the yard of a residence at Tara. The respondent walked to the front porch of the residence and hit a male person seated on the front porch at least ten times, causing his brow to split, resulting in bleeding. The respondent then walked into the house through the front door, again uninvited, approached a female person who was standing near the front doorway and punched that person once to her face in the mouth area, causing the person’s upper lip and gums to be split, resulting in bleeding and swelling. The respondent then walked into the kitchen area of the house, approached the owner of the house and punched that person in the right side of the head, causing bruising and swelling of her face. The respondent then turned around and left the house through the front door. On the following day, the respondent was charged with criminal offences. On 19 April 2018, in the Magistrates Court at Dalby, the respondent pleaded guilty to and was convicted of one count of entering a dwelling and committing an indictable offence and three counts of assault occasioning bodily harm whilst in company. Convictions were recorded for all four offences and the respondent was sentenced to 12 months imprisonment, suspended for three years and made subject to a probation order for a period of two years, as well as being ordered to pay compensation to her three victims. Allegation 2 is constituted by the respondent’s failure to notify the Nursing and Midwifery Board of Australia of the relevant event of her being charged with offences punishable by 12 months imprisonment or more, in contravention of section 130 of the Health Practitioner Regulation National Law (Queensland) (National Law).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Flute [2021] QCAT 189
PARTIES:	HEALTH OMBUDSMAN
(applicant)
v
TRUDI ANN FLUTE
(respondent)
APPLICATION NO/S:	OCR123-19
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	31 May 2021 (ex tempore)
HEARING DATE:	31 May 2021
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President Assisted by: Ms Laura Dyer Ms Dominique Layt Mr Stephen Lewis
ORDERS:	1. Pursuant to section 107(2)(b)(iii) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal decides, in relation to each of allegations 1 and 3, that the respondent has behaved in a way that constitutes professional misconduct. 2. Pursuant to section 107(2)(b)(ii) of the *Health Ombudsman Act* 2013 (Qld), the Tribunal decides, in relation to allegation 2, that the respondent has behaved in a way that constitutes unprofessional conduct. 3. Pursuant to section 107(3)(a) of the *Health Ombudsman Act* 2013 (Qld), the respondent is reprimanded. 4. Pursuant to section 107(4)(a) of the *Health Ombudsman Act* 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of two (2) years.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent was registered as an enrolled nurse – where the respondent was convicted of serious criminal offences – whether such conduct should be characterised as professional misconduct – where the respondent failed to notify the Nursing and Midwifery Board of the relevant event of being charged with offences – whether such conduct should be characterised as unprofessional conduct – what sanction should be imposed Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107 Health Practitioner Regulation National Law (Queensland), s 5, s 130 Chiropractic Board of Australia v Oorloff [2019] VCAT 2010 Health Ombudsman v Lozano [2021] QCAT 87 Nursing and Midwifery Board of Australia v Gaffney [2019] SAHPT 11 Nursing and Midwifery Board of Australia v Sellen [2020] QCAT 318
APPEARANCES & REPRESENTATION:
Applicant:	N Townsend of the Office of the Health Ombudsman
Respondent:	No appearance